(dissenting).
I would reverse the judgment of the district court and order it to grant the writ unless the state promptly offers appellant a retrospective hearing as to his competency.
Distilled to its essence this case, in my view, presents two questions:
1. Did the evidence and circumstances at the hearing (a) to withdraw the guilty plea and (b) to determine the degree of guilt, raise such a bona fide doubt as to petitioner-appellant’s competency to participate at the time that it was error of constitutional proportions not to hold an independent hearing on that issue?
2. If there was such error, was the retrospective hearing on that issue in the district court a sufficient compliance with the due process mandate of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)?
The answer to the first question posed is obtained by an examination of the record before the state court in 1965. It would serve no purpose to add to the reader’s burden by repeating what is extracted in the other opinions with respect to the competency issue. Suffice it to say that I believe the several psychiatric reports, without more, created a bona fide doubt as to appellant’s competency. Rather than justifying a refusal to hold such a hearing, they cried out for an independent hearing and determination of competency. This obligation was not diluted by the somewhat confusing position taken by appellant’s counsel.
Having found that the state court had an obligation to direct a hearing on the competency issue, I turn to the issue as to whether the district court hearing and determination fulfills the due process requirements of Pate v. Robinson.
An important preliminary question arises. Could the district court hearing fulfill the constitutional requirement of an independent hearing as to competency when a state criminal case is involved? I think not. I think the determination was for the state court. I say this because the state is free to decide pursuant to its own procedures whether a criminal defendant is competent to participate in any given stage of a proceeding. See, e. g., Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258 (1956). In contrast the federal court’s function is limited to deciding whether there existed a bona fide doubt as to the defendant’s competency within the context of Pate v. Robinson, supra.
I conclude that had the district court decided, as I think it should have, that there was a bona fide doubt as to appellant’s competency at the time of the state court hearing, it should have issued the writ but stayed its execution on the condition that the state afford appellant appropriate relief within a reasonable time. See Barefield v. State of New Mexico, 434 F.2d 307 (10th Cir. 1970).
The next major issue is what constitutes “appropriate relief” in these circumstances. The answer is extremely difficult because it calls for an application of the teachings of Pate v. Robinson to a quite disparate factual situation.
The court in Pate v. Robinson noted the difficulty in retrospectively determining an accused’s competence to stand trial. It noted that “[t]he jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record.” The court went on to say that the “need for concurrent determination” distinguished the case from Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964). In Pate v. Robinson there was an absence of contemporaneous *101medical evidence on the competency issue. Here there is substantial psychiatric evidence as to the appellant’s competency which is relatively contemporaneous to the period here deemed crucial. Conner v. Wingo, 429 F.2d 630, 637 (6th Cir. 1970). Presumably these psychiatrists are available to testify based on extremely relevant examinations and reports. The fact that some of the reports focused on the McNaughten issue does not alter their possible relevancy on the issue of competency in 1965.
In Pate v. Robinson the court concluded that under the facts before it there could not be a “meaningful” hearing solely on the issue of competency to stand trial. Here, in contrast, the requisites for a meaningful hearing are present.
I therefore conclude on the present facts that it is constitutionally permissible for the issue of the appellant’s competency at the crucial date to be resolved by a retrospective determination. Of course, his present competency is always a possible threshold issue. See 383 U.S. at 387, 86 S.Ct. 836.